Koloi v The Queen
[2004] NZCA 199
•24 August 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA447/03
THE QUEEN
v
SALOTE EVEEA HEFAAFE KOLOI
Hearing:16 August 2004
Coram:O'Regan J
Randerson J
Heath JAppearances: M F Tuilotolava for Appellant
F E Guy for Crown
Judgment:24 August 2004
JUDGMENT OF THE COURT DELIVERED BY RANDERSON J
Introduction
[1] The appellant was convicted after trial in the District Court of two counts of assaulting patients at an Auckland geriatric hospital. She was acquitted of 13 other assault counts relating to different patients.
[2] Judge J P Doogue considered that a deterrent sentence was called for and imposed concurrent sentences of six months imprisonment on each charge. The Judge granted the appellant leave to apply for home detention which was later granted. We were informed that the appellant has now completed her sentence.
Background facts
[3] The appellant was employed as a nurse aid at the hospital. The Crown charged her with assaulting seven patients, some of them on more than one occasion. One of the principal Crown witnesses was another nurse aid employed at the hospital, a Ms Tuitopou. Indeed, Ms Tuitopou was the sole Crown witness in relation to many of the charges. The Crown case was that the alleged assaults had a number of common features. These were that the appellant had assaulted the patients in order to get them to comply with her directions; that the patients were persons incapable of looking after themselves and of communicating or complaining to anyone about the assaults; and that the assaults generally took the form of slaps or punches to the head or a blow to the leg. The defence was that none of the assaults happened and that the key Crown witnesses had fabricated their evidence.
[4] The trial was due to commence on 6 October 2003. At a late stage, the Crown applied to amend the indictment to increase the number of counts to 25, alleging additional assaults on other patients. That application was declined by Judge Joyce QC on 30 September 2003 but the Crown then sought to adduce the additional material as similar fact evidence. That application was granted in a second ruling by Judge Joyce on 2 October 2003. The similar fact evidence was to come from five additional witnesses giving evidence about alleged assaults on four additional patients.
[5] After a trial occupying six days, the jury found the appellant guilty of count 13 alleging an assault on a Ms Rankin in the period 1 October 2000 to 31 July 2001 and count 15 alleging an assault on a Mrs Reid on or about 30 June 2001.
Grounds of appeal
[6] Ms Tuilotolava raised a number of grounds in support of the appeal against conviction. These may be grouped as follows:
a)The similar fact evidence should not have been admitted and the summing up by the trial Judge was inadequate on the issue;
b)The summing up on the evidence relating to count 13 was wrong;
c)There were errors in the summing up on count 15 in relation to the authority given to hospital staff to restrain patients and the Crown should have led evidence on this subject; and
d)The two guilty verdicts were inconsistent with the not guilty verdicts.
Similar fact issues
[7] While we have some reservations about the extent and nature of the similar fact evidence admitted (given the earlier decision refusing leave to amend the indictment), we are not persuaded that the issue had any material bearing on the outcome of the trial. The jury acquitted the appellant on all but two of the 15 counts, plainly demonstrating that its members were not adversely influenced by the similar fact evidence. The similar fact evidence was presented in a general way as supporting all of the allegations. We accept the submission made by Ms Guy for the Crown that the jury must have considered there was other evidence or circumstances which enabled them to come to a guilty verdict on counts 13 and 15. We add that there is nothing in the summing up which could be described as a material misdirection on the similar fact issue.
Errors alleged in the summing up on count 13
[8] In order to deal with this submission, it is necessary to set out some more detail of the evidence. Dealing first with count 13 relating to Ms Rankin, the only evidence adduced by the Crown was an admission made by the appellant to a Sergeant Hjorth in a written statement she made on 18 May 2002. In that statement, the appellant denied assaulting any of the patients except a Mr McRae and Ms Rankin. In response to a question as to whether she had hit any other patients, she responded “only Douglas and Doreen” (referring to the christian names of Mr McRae and Ms Rankin). The appellant went on to explain in her statement that she slapped Mr McRae twice on the left thigh because he was resisting having a shower. The appellant stated that “my hand was flat open”.
[9] The following passage from the appellant’s statement relates to the incident with Ms Rankin:
Q: Tell me what happened with Doreen?
A:Doreen happened in the morning after breakfast and I went to her room. She was wet and I told her she had to go to the shower.
Q:Then what?
A:I pushed her out of bed, she jumped back in, this happened about three times where she jumped back in bed.
Q:What else happened?
A:I grabbed her hands and pulled her out of bed. I then called for help, and I think it was Leata came to help, and we both were holding one of her arms.
Q:Then what happened?
A:We were holding her arms, I had her left arm and she still would not go so I slapped her on the back of her head.
Q:What did she do?
A:She just said ‘fuck you’. Sometimes she swears at us.
Q:Did she go with you?
A:Yeah, yeah.
Q:Were you talking to her?
A:Yeah, I said she needs to shower and we need to change her bed, stuff like that.
Q:How big is Leata?
A:She’s bigger than me.
Q:When you slapped her were both you and Leata holding her arms?
A:Yes.
Q:How did you slap Doreen?
A:Open hand on the back of her head.
Q:Which hand and how many times?
A:Just once, this one, right hand.
Q:Anything else about that?
A:No, that’s all.
[10] In his evidence in chief, Sergeant Hjorth was asked to elaborate on his interview with the appellant. He said she had demonstrated what she had done to both Mr McRae and Ms Rankin. In the first case, it was a slap on the leg with an open hand. When asked whether she demonstrated a soft or hard slap, the Sergeant said he would say it was a hard slap.
[11] In the case of Ms Rankin, Sergeant Hjorth said that the appellant had demonstrated slapping the back of her head with her hand. In cross‑examination, the Sergeant added that the appellant’s demonstration of the slap to Ms Rankin’s head showed “substantial force”; “She seemed to do it fairly hard”.
[12] Giving evidence on her own behalf, the appellant said Mr McRae had soiled himself and she was attempting to lead him to the shower. He still had his clothes on and was refusing to go into the shower. She indicated she had patted Mr McRae on the right hip and he had been co‑operative after that. She did not think that she had done anything to hurt him. She denied suggestions that she had hit Mr McRae on any other occasions or that she had hit him over the head.
[13] The appellant described Ms Rankin as being mentally retarded. She said Ms Rankin tended to run about a lot and on these occasions she had to be taken to her room. She denied hitting Ms Rankin about the head. In cross‑examination she said that Ms Rankin was being difficult and when asked about her police statement, she stated she had not slapped her. It was more of a caress across the back of her head or a wiping type of motion. She explained that English was her second language and she could not explain in “proper English” to the police officer what had happened. She said the Sergeant was lying in describing what she had demonstrated to him.
[14] The Judge’s summing up on this point was as follows:
Count 13, now this is another count involving the statement given to Sergeant Hjorth and this involved a slap on the forehead and again the accused takes the position that the Sergeant is lying about what he told you, what she said about this incident. She did not indicate or agree that she had hit the patient with force.
[15] Ms Tuilotolava submitted that the Judge had been in error in describing the evidence as disclosing a slap on the forehead. She added that the same error was made in a schedule the Judge prepared and gave to the jury, summarising the Crown allegation for each count, the witnesses the Crown relied upon, and a summary of the defence in each case.
[16] We do not accept the appellant’s submission on this issue. In our view, the jury could not have misunderstood the evidence on the point, despite the minor error made by the Judge in describing this incident. The jury had the full notes of evidence and also had another summary prepared by the Crown relating to the evidence of Ms Tuitopou. That summary stated in relation to count 13:
Accused slapped Miss Rankin on her head.
Errors in relation to count 15 – restraint issues
[17] The Crown case on count 15 depended solely upon the evidence of Ms Tuitopou. She said she had been on night duty with the appellant and Mrs Reid was wandering about, calling out. The appellant then forced Mrs Reid on to a chair and restrained her by tying her around the body with a sheet. The evidence then continued:
And then Shona keep yelling, daddy daddy daddy, and then she grabbed the other sheet that Shona hold and she fold it up and when she finish fold it up she’s stand up, Salote was stand up beside Shona and she was using the sheet hitting her like this, on the side and on that side and on the mouth
Witness indicates that the accused rolled up a sheet and hit her side to side on the cheeks and on the mouth with the sheet?….. but she hit very hard with that thing.
What did Mrs Reed do?…..Yeah, she said she gonna tell – I gonna tell you, when daddy coming I gonna tell you.
I’m going to tell you, when daddy comes I’m going to tell daddy?…..Yeah.
When you saw that did you report it to tell anyone about that incident?….. Yeah, I ring up the manager and on Monday but she was not available.
Who was that?…..That’s Miss Pat Hooker. So I ring up again on Tuesday but can’t see her, but I already write down the incident form on that night.
You wrote an incident form?…..Yeah.
So did you report that incident involving Shona Reed that you saw?…..Yes.
Do you remember what you said on the incident form?…..I said that Shona Reed was wandering that night and Salote Koloi was rolling a sheet and hit her face.
Salote Koloi rolling a sheet and hitting her?…..Yeah, on her face. And then on Wednesday I think I better go and see the boss face to face.
And this incident was on Saturday, the 30th of June 2001?…..Yeah.
And so a few days later did you go and see?…..Miss Pat Hooker.
[18] The witness went on to say that she completed an incident form and handed it in. She was also asked to write a letter which she did. Thereafter, there was an investigation by the hospital which apparently was unable to reach any conclusion about the accusations she made. She also took the matter up with the directors of the company responsible for the hospital and with Age Concern.
[19] Ms Tuitopou’s evidence was strongly challenged in cross‑examination. It was suggested to her that she had fabricated her evidence and that she had made the accusations because she was dissatisfied that the appellant had not been dismissed from her employment.
[20] In her evidence, the appellant denied ever having rolled up a sheet and hit Mrs Reid across her cheeks and on the mouth. The appellant maintained that denial in cross‑examination.
[21] Ms Tuilotolava submitted that the evidence about Mrs Reid being restrained and then hit with the rolled up sheet was likely to have been of real concern to the jury. The evidence was prejudicial to the appellant’s case, especially given the vulnerable position of Mrs Reid as an elderly patient suffering from dementia. While acknowledging that evidence had been called on behalf of the appellant to the effect that there was an authority to restrain Mrs Reid in certain circumstances, she submitted the Crown should have produced in evidence the actual form of written authorisation to restrain Mrs Reid. Ms Tuilotolava coupled that with a submission that the trial Judge should have dealt with the point more fully in his summing up.
[22] We are unable to accept these submissions for the following reasons. First, there was evidence before the court from two registered nurses called by the appellant that authorisation to apply physical restraints was obtained in relation to Mrs Reid and other patients. In such cases, a patient may be tied down with a sheet or a cloth belt to safeguard them from falling. If such a restraint is authorised, it may only be implemented by a registered nurse. A written authorisation for physical restraint of this kind had been obtained for Mrs Reid. All of this evidence was undisputed by the Crown.
[23] We were supplied with a copy of the restraint authorisation form in relation to Mrs Reid, signed by her husband on 8 August 2000. The content of this form would have added nothing to the undisputed oral evidence given. As we understand it, neither the Crown nor defence were aware of the existence of the written authorisation until after the trial.
[24] Secondly, the appellant’s defence to count 15 was not that an authorised assault occurred. Her defence was that the incident described by Miss Tuitopou did not occur at all. It would have been quite contrary to the appellant’s defence to have suggested there was some form of express or implied consent to an assault by reason of the restraint authorisation.
[25] Thirdly, what the Crown alleged had occurred was not within the form of the authorisation because only a registered nurse had authority to restrain a patient and only in specified circumstances.
[26] Fourthly, the Judge, quite correctly, made it clear that there could be no issue about implied consent for the acts which the Crown alleged constituted assaults. The Crown case was that patients were slapped or punched in a way which went well beyond the bounds of justified touching or force used in the normal handling of a patient.
[27] Finally, the Judge, in his summing up, correctly summarised the Crown allegation against the appellant on count 15 in the schedule produced to the jury as follows:
Hit with sheet; restrained with sheet.
[28] Either of those particulars would have sustained a charge of assault.
Inconsistent verdicts
[29] The submission made by Ms Tuilotolava in relation to count 13 was that the verdict was inconsistent with the jury’s rejection of count 10 in respect of Mr McRae. She submitted that for both counts the Crown relied solely upon the admissions made by the appellant to Sergeant Hjorth. The jury must have rejected the Sergeant’s evidence on count 10 yet accepted his evidence on count 13.
[30] We do not accept that submission. In order to succeed on this ground, the appellant must show that no reasonable jury, applying its mind properly to the facts, could have reached a different verdict: R v Irvine [1976] 1 NZLR 96. The critical question is whether the different verdicts indicate that the jury must have accepted certain evidence in relation to one count but rejected the same evidence in relation to another: R v Maddox CA424/00 1 March 2001. It is also well established that a jury may accept the evidence of a witness in some respects but not others.
[31] We accept the submission made by Ms Guy for the Crown that the nature and circumstances of the two incidents are quite different. It was entirely open for the jury to conclude (without in any way rejecting Sergeant Hjorth’s evidence) that slapping Mr McRae on his leg in the circumstances described did not go beyond the kind of contact which was reasonably necessary and justified in dealing with elderly patients who are failing to co‑operate or resisting reasonable steps being taken in their care. Conversely, it was open for the jury to conclude on the basis of the admissions made about Ms Rankin’s case that slapping her across the back of the head with considerable force constituted an assault.
[32] Nevertheless, we have concerns about the safety of a conviction on count 15. Ms Tuilotolava’s submission was that count 15, which relied solely upon the evidence of Ms Tuitopou, was inconsistent with the jury’s acquittal of the appellant on all other counts which relied upon Ms Tuitopou’s evidence. She submitted that the jury must necessarily have rejected Ms Tuitopou’s evidence on the other counts and it followed that the jury should have rejected her evidence on count 15 as well.
[33] Ms Guy submitted there were a number of features which could have been relied upon by the jury to have distinguished count 15 from the others. First, she submitted that in the other cases where the Crown relied upon Ms Tuitopou’s evidence she had alleged that registered nurses were present at the time of the assault or that she had told a registered nurse about the incident. Where these allegations were made, the appellant had called evidence from the registered nurses who denied ever receiving such complaint. These were counts 1, 3, 7, 9, 11 and 12. In the other counts where Ms Tuitopou’s evidence was relied upon (counts 2, 4, 5, 6 and 8) there was no suggestion that a registered nurse observed or was informed of the incident.
[34] In contrast, Ms Guy submitted that the one significant difference with count 15 was that Ms Tuitopou immediately started a complaint process. She completed an incident form; she telephoned Miss Hooker; she wrote a letter detailing the assaults she had witnessed; and she pursued the matter with the hospital directors and Age Concern. It was not challenged that Ms Tuitopou made a complaint to Miss Hooker. As well, Ms Guy submitted that count 15 was the only one which specified a date for the incident, that date being established by the complaint process Ms Tuitopou pursued.
[35] Next, Ms Guy submitted that count 15 could be distinguished because it is the only one where some form of weapon was used. She submitted that the use of a rolled up sheet in the way described could have been regarded by the jury as an unreasonable action so as to constitute an assault.
[36] All of the matters raised by the Crown have the potential to provide grounds upon which the jury’s verdict on count 15 could be differentiated from the other verdicts where the sole principal witness was Ms Tuitopou. However, during the hearing we raised with counsel another possible difficulty with the verdict on count 15. It will be evident from the portion of transcript already quoted in paragraph [17] above that Ms Tuitopou was asked in her evidence in chief about the contents of the form she completed about the incident with Mrs Reid. Her evidence was that she had said in the incident form that the appellant rolled a sheet and hit Mrs Reid in the face. The prosecutor then asked a series of further questions about other steps which the witness had taken to bring the complaint to attention. These included a letter of complaint in which she said she listed the number of residents who had been assaulted by the appellant. She was then asked whether she could recall the names of the patients listed in the letter. At that point the Judge intervened and ruled out any further evidence about the contents of the letter on the basis that it was a prior consistent statement and was not admissible.
[37] It is clear from a jury question after their retirement that the existence and content of the incident report said to have been completed in relation to Mrs Reid was a matter of importance to the jury. They asked for the incident report and, after discussion with counsel, the Judge advised the jury that counsel were agreed that no forms of that kind were produced in evidence as exhibits and they were not available for the jury to look at. The Judge went on to observe that counsel considered it would be helpful if some passages in evidence were read which made reference to the types of matters contained in incident reports. The Judge then read a passage from the cross‑examination of Ms Tuitopou about an incident report in relation to another patient.
[38] The Judge then indicated that he had been asked by counsel to read out other parts of the evidence which included Ms Tuitopou’s evidence just discussed as to the content of the incident form she completed in relation to Mrs Reid. At no stage during the trial, in his summing up, or in response to the jury question, did the Judge deal with the admissibility of this evidence or the manner in which it could be used by the jury.
[39] While it may have been permissible as part of the narrative to lead evidence that a complaint had been made, we have no doubt that evidence of the content of the complaint should not have been led. It was inadmissible as a prior consistent statement. Arguably, it may have been within the discretion of the Judge to have allowed the content of the statement to have been led in re‑examination to rebut a suggestion of recent invention: Cross on Evidence, New Zealand edition, at 9.42. That course might have been available given that it was suggested to the witness in cross‑examination that she had fabricated her evidence. We note, however, that there was no suggestion of any inconsistency between the evidence of the witness given in court and the content of the complaint. Rather, the defence was that the incident did not happen at all.
[40] Even if the evidence could properly have been introduced, there should have been a clear direction by the Judge that the content of the complaint could not be used to bolster Ms Tuitopou’s evidence but only as a test for consistency. We accept that neither side raised the issue and indeed, invited the Judge to reiterate the material in response to the jury’s question. This placed the trial Judge in a difficult position but, in the end, it was his responsibility to ensure that only admissible material was admitted in evidence and that the jury was directed as to what use could be made of that material.
[41] We are left in the position where we cannot exclude the reasonable possibility that the jury improperly used the inadmissible evidence to bolster their finding on this count. Given the apparent rejection of Ms Tuitopou’s evidence on all other counts and the jury’s question on this point, there is a real risk that a miscarriage of justice has occurred. We quash the conviction on count 15 accordingly.
Appeal against sentence
[42] The maximum penalty for a charge of assault laid under s 196 of the Crimes Act is twelve months imprisonment. The Judge imposed concurrent sentences of six months imprisonment on each of the charges on which the appellant was convicted.
[43] In terms of aggravating features, the Judge took into account the use of actual violence and the fact that the victims were particularly vulnerable because of their age or health. He noted the view of the probation officer that the appellant had no real motivation to change because she continued to deny responsibility.
[44] By way of mitigation, the Judge recorded that the appellant was a first offender and that she had a ten year old son with an intellectual disability. The Judge accepted that this cast a heavy burden on the appellant, along with her role in helping to care for an elderly relative.
[45] The Judge regarded deterrence as an important factor in the appellant’s sentencing and saw a need to send a message to those working in rest homes that it was not acceptable to assault patients in the way the appellant had done. In deciding that a term of imprisonment was appropriate, the Judge took into account the appellant’s absence of remorse and her unwillingness to accept responsibility. However, he recognised that it was an appropriate case to grant leave to apply for home detention and concluded, on humanitarian grounds, that the appellant’s sentence should not commence until the Parole Board had considered her application.
[46] In support of the appeal against sentence, Ms Tuilotolava emphasised that Ms Rankin had been slapped only once on the head and there were no reports of bruising or redness.
[47] Ms Tuilotolava also pointed to a passage in the sentencing notes which, she submitted, indicated that the Judge may have taken into account the other incidents which did not result in convictions. However, we accept Ms Guy’s submission on this issue that the Judge was responding to denials made by the appellant in the news media that the events did not happen.
[48] The Judge expressed the view that the jury’s verdict was fully justified and was supported by similar fact evidence. We do not consider that these remarks implied that the Judge was taking into account the other conduct for the purpose of sentencing.
[49] For the Crown, Ms Guy submitted that the sentence was not manifestly excessive. She emphasised that the offending was against particularly vulnerable members of society who were unable to complain themselves about what happened to them. She submitted that the breach of trust was a significant feature and that offending of this type was sometimes difficult to detect. She submitted that a deterrent sentence was warranted, citing R v Harawira [1989] 2 NZLR 714 which concerned charges of injuring with intent to injure and threatening to kill a committed patient in a mental health unit. This court observed at 730 that substantial prison sentences were called for in order to mark the condemnation of the conduct, to punish the offenders, and to serve as a deterrent to others in similar situations of institutional authority. Ms Guy also cited R v Jackson CA477/96 24 March 1997, a case which concerned the sexual assault by a psychiatric nurse on a voluntary patient at Porirua Hospital. Again, this court emphasised at p 5 the vulnerability of the victim and the gross breach of trust involved.
[50] Plainly, there is no tariff for offending of this kind but the Judge was right to place deterrence at the forefront of his considerations. We have no doubt that the patients in the appellant’s care were particularly vulnerable and to engage in an assault of this kind constituted a serious breach of trust. We agree with the Judge that a clear message must be sent to those working in similar institutions that this kind of conduct will not be tolerated and will likely attract a sentence of imprisonment.
[51] Here, we have no doubt that, but for the quashing of the second conviction, the sentences imposed were appropriate. In imposing a sentence of six months imprisonment on each count, the Judge must have taken into account the totality of the offending. It inevitably follows that, in justice, there must be some reduction in the sentence imposed. We consider that a sentence of three months imprisonment would have been appropriate on the single remaining count.
[52] Accordingly the sentence of six months imprisonment imposed on count 13 will be quashed and a sentence of three months imprisonment substituted.
Result
[53] The conviction and sentence on count 15 are quashed. We do not in the circumstances order a re‑trial on that count. The conviction on count 13 will stand but a sentence of three months imprisonment will be substituted. That sentence has effectively been served.
Solicitors:
Ferguson Tuilotolava, Auckland for Appellant
Crown Law Office, Wellington
0
0